City facing new legal challenge over Affordability Unlocked, other rules this week

The 18 plaintiffs who won a judgment against the city of Austin over its attempted rewrite of the Land Development Code in 2020 are going back to court this week. This time, they’ll attempt to overturn city regulations created in response to the need for more housing.

Led by Frances Acuña, the group’s members have asked that a Travis County district judge throw out four ordinances that they believe were passed without sufficient notice to the public. The city did not go through the process of notifying neighbors that rules were changing for development of nearby properties, arguing that such notice requirements do not apply in these cases, because the zoning classifications are not changing.

At issue are the Affordability Unlocked ordinance, the Vertical Mixed Use 2 (VMU2) ordinance, the ordinance allowing residential use in commercial zones and the compatibility ordinance.

A city spokesperson told the Austin Monitor, “The City looks forward to the Court’s careful consideration of the ordinance notice provisions at issue and we are confident that the notices comply with state law and the judgment entered in the case.”

Fred Lewis of land development policy advocate group Community Not Commodity told the Monitor via email that the city’s argument is “weak.”

“The City contends that it did not violate the Trials Court’s Injunction on notice to property owners and surrounding owners,” he wrote, adding that the city “admits that it didn’t send written notice to the requisite property owners” for the Affordability Unlocked, VMU2 and residential-in-commercial ordinances.

“The city maintains, however, that it didn’t have to send notice because the city ordinances didn’t change the zoning classifications,” Lewis wrote. “The City argues that it is only required to provide notice when it proposes to change the label of a zoning classification (such as SF-3) and not when it proposes to change the zoning regulation or district boundaries (the use, height, number of units etc.).”

On Monday, about 50 advocates for low-income housing demonstrated outside the Travis County Civil and Family Courts Facility at 17th and Guadalupe streets to show their support for the ordinances and opposition to dismantling them. The group included City Council members Chito Vela and Zo Qadri, as well as U.S. Rep. Greg Casar, a former Council member.

If the judge decides the plaintiffs are correct, Council would have to reconsider the ordinances after sending out thousands of letters to people living close to properties that might be affected. Vela told the Monitor on Monday that he had no doubt that the current Council would approve all four of those ordinances if the city loses in court.

Since Council approved the Affordability Unlocked ordinance, the Guadalupe Neighborhood Development Corporation has used it to develop a number of projects for low-income residents, particularly designed to help people who may have grown up in East Austin but can no longer afford to live there without some assistance.

“We have a senior housing project that we are building, and we were able to fit more units onto a very small site” because of that ordinance, said Rachel Stone, an executive with the corporation. That project would have been much smaller under older regulations, she added.

In addition, Stone said, the corporation has a community land trust that was able to build more housing on smaller pieces of land because of Affordability Unlocked. Under the land trust, the corporation sells the houses but continues to own the underlying land, making it more affordable for low-income buyers.

Vela said the people suing the city may have waited too long to complain about the Affordability Unlocked program because of a state law that only allows legal challenges to ordinances that have been in effect for less than three years. Council unanimously approved the Affordability Unlocked bonus program in 2019.

Lewis said the plaintiffs have been told a hearing on their motion for sanctions against the city will be heard sometime this week. If the judge rules in favor of the plaintiffs, the judge could impose monetary sanctions against the city. It seems likely that whichever side loses, the matter will be appealed.

Photo by ایران پتک, made available through a Creative Commons license, via Wikimedia Commons.

The Austin Monitor’s work is made possible by donations from the community. Though our reporting covers donors from time to time, we are careful to keep business and editorial efforts separate while maintaining transparency. A complete list of donors is available here, and our code of ethics is explained here.